M v Egypt

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.
Arab Republic of Egypt

State immunity Jurisdictional immunity Employment dispute Locally recruited chauffeur employed by mission of foreign State Employee having same nationality as employer State Claim for salary arrears and overtime pay Whether foreign State entitled to jurisdictional immunity Subordinate nature of employment Relevance of fact that employee of same nationality as employer State European Convention on State Immunity, 1972 Extent to which Convention rules may be applicable to non-parties as evidence of generalized State practice The law of Switzerland

Summary: The facts:M, an Egyptian national, arrived in Switzerland in 1979 to study there. Subsequently he worked successively at the Consulates of Saudi Arabia and Egypt from 1984 to 1988. In 1988 he was hired to work full time as a chauffeur by the Arab Republic of Egypt at its Permanent Mission to the United Nations in Geneva. This employment was terminated in 1992. He then brought proceedings before the Labour Court of Geneva claiming arrears of salary and overtime pay. The defendant State entered a plea of immunity which was upheld by the Labour Court and this judgment was confirmed by the Appeals Chamber. M then appealed to the Federal Tribunal seeking a ruling that the labour courts were competent to exercise jurisdiction over the dispute.

Held:The plea of immunity was unfounded, the appeal was allowed and the case was remitted to the competent labour court for consideration on the merits.

(1) Article 5 of the European Convention on State Immunity, 1972, created an exception where immunity could be relied upon, in proceedings relating to a contract of employment between a foreign State and an individual, if that individual was a national of the employing State. Where, as here, the State concerned was not a party to the Convention, the jurisprudence of the Federal Tribunal had not adopted a settled position as to whether or not the principles of the Convention could be relied upon as evidence of generalized State practice. It was clearly an extremely delicate matter to try to make a pronouncement on a question of State immunity based on the Convention in a case where the State at issue was not a party to the Convention and was not a European State. Even more reserve was called for where, as here, the point at issue was not the existence of a principle but the scope of a specific exception to the solution of principle enshrined in the Convention.

(2) The dispute in question was therefore to be resolved in the light of the principles of public international law established in the jurisprudence of the Federal Tribunal. It was generally accepted that a foreign State could not rely on immunity where it acted on the same level as a private individual, in particular as the holder of private rights (jure gestionis). Such acts were to be distinguished from acts of sovereignty (performed jure imperii) by their nature rather than their purpose. In each case, it was for the court to balance the interest of the foreign State in enjoying immunity against the interest of the forum State in exercising jurisdiction and the interest of the plaintiff in obtaining judicial protection of his rights.

(3) With regard to contracts of employment, it was accepted that the sending State could have a special interest in preventing disputes with one of its embassy staff performing senior functions from being brought before foreign courts. The same could not be said with regard to disputes with subordinate employees, such as a chauffeur. Where the employee was not a national of the sending State, and had been locally recruited by the embassy in the forum State, the jurisdiction of that State could normally be recognized. It was also necessary under Swiss law to establish a significant link with Swiss territory before the Swiss courts could exercise jurisdiction. Such a link was present in this case since the plaintiff had been recruited in Geneva and lived there for many years. Since the European Convention was inapplicable, the fact that the plaintiff was a national of the sending State was not decisive for a decision on jurisdictional immunity but merely constituted one factor, amongst others, to be taken into consideration.

The following is the text of the judgment of the Court:

A.M, an Egyptian national married to a Moroccan, is the father of two children and arrived in Switzerland in 1979 to study there for four years. Subsequently he worked in Geneva for the Consulate of Saudi Arabia from 1984 to 1987 and then for the Consulate of Egypt from 1987 to 1988.

In 1988 M was hired for full-time employment as second chauffeur to the Permanent Mission of the Arab Republic of Egypt to the European Office of the United Nations in Geneva. At the end of January or the beginning of February 1992, the Head of that Mission terminated his employment with effect from 1 March of the same year.

B.On 10 June 1992 M brought proceedings against the Arab Republic of Egypt to obtain payment of his salary for February and March 1992, overtime and holiday pay, representing a total of 15,045 Swiss francs. The defendant entered a plea of diplomatic immunity.

By a judgment of 2 February 1993, the Labour Court of the...

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